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Saskatchewan Judgments
R. V. LUCAS
CA96024
Date of Judgment: January 12, 1996 (orally)
Number of Pages: 6
THE COURT OF APPEAL FOR SASKATCHEWAN
FILE NO. 6672
JOHANNA ERNA LUCAS
APPELLANT
and -
HER MAJESTY THE QUEEN
RESPONDENT
FILE NO. 6673
JOHN DAVID LUCAS
APPELLANT
and -
HER MAJESTY THE QUEEN
RESPONDENT
CORAM:
The Honourable Mr. Justice Tallis
The Honourable Mr. Justice Vancise
The Honourable Mr. Justice Lane
COUNSEL:
Mr. E. Holgate for the Appellant
Mr. D. Rayner and Mr. R. Macnab for the Crown
DISPOSITION:
Appeal Heard: January 12, 1996
Appeal as to
Conviction Dismissed:January 12, 1996 (orally)
Appeal as to
Sentence Allowed:January 12, 1996 (orally)
Reasons: February 5, 1996
On Appeal From: Q.B.J. 7/94, J.C. of Saskatoon
Appeal File: 6672 & 6673
Reasons by: The Honourable Mr. Justice Vancise
In concurrence: The Honourable Mr. Justice Tallis
The Honourable Mr. Justice Lane
VANCISE J.A. (orally)
The two appellants were charged with publishing a
defamatory libel knowing it to be false, contrary to ss.
300 and 301 of the Criminal Code.
Prior to trial the appellants brought an application
to have ss. 300 and 301 declared unconstitutional by reason
that the impugned sections contravened ss. 2(b), 7 and
11(c) and (d) of the Charter. Mr. Justice Hrabinsky found
s. 300 of the Code did not contravene ss. 7 or 11(b) and
(d) of the Charter. He found ss. 300 and 301 infringed
freedom of expression as guaranteed by s. 2(b) of the
Charter but such violation was justified in the case of s.
300. He found the limitation on freedom of expression was
not justified in the case of s. 301 and such finding was
not appealed by the Crown.
After a trial, the two appellants were convicted of
publishing a defamatory libel contrary to s. 300 of the
Code. The appellant John Lucas was sentenced to a term of
imprisonment of two years less one day. The appellant
Johanna Lucas was sentenced to a term of imprisonment of
twenty two months.
Both appellants appeal their conviction and sentence.
There are three issues on this appeal:
1. the constitutionality of s. 300 of the Code;
2.whether the Crown proved all the elements of the
offence beyond a reasonable doubt; and
3.whether the sentences imposed by the trial judge are
fit in the circumstances of this case.
We are all of the opinion that the constitutional
question is resolved by the decision of the Manitoba Court
of Appeal in R. v. Stevens. We agree essentially with
the analysis of that Court on the question of the
constitutionality of s. 300. In our opinion, nothing would
be added by us writing further on the subject given that we
agree with the conclusion of the Manitoba Court of Appeal
the section is constitutional. This ground of appeal is
dismissed.
In order for the Crown to prove defamatory libel
pursuant to s. 300 it is necessary that the Crown establish
the actus reus of the offence by proving the publication of
a false statement that is defamatory. The Crown must also
prove the appellants intended to publish the defamatory
libel knowing it to be false with intention to defame. In
our opinion, the Crown has proved all the essential
elements of the offence beyond a reasonable doubt with
respect to both the appellants. This ground of appeal must
fail.
While it is not necessary for the resolution of this
matter to comment on the way in which Mr. Lucas received
copies of the documents which formed the basis of his
concern for how the police, and in particular Sergeant
Dueck, handled the investigation of the allegations of
sexual assault and abuse against certain individuals, the
facts of this case oblige us to do so. An examination of
the transcript reveals that Mr. Lucas testified he received
these documents, which contained details of sexual abuse of
two sisters by their brother as well as details of sexual
abuse of these three children by adults, describes as the
"Thompson Papers" during the trial, in three instalments.
He received the first and second instalments in his mail
box anonymously. Mr. Lucas was unable to say who put the
papers in his mailbox. With respect to the third
instalment of the "Thompson papers", Mr. Lucas testified he
received them from a Richard Klassen and that he was
present when Klassen received them from his (Klassen's)
lawyer. It would appear that the disclosure of the
information and documentation, which was made to Klassen to
permit him to make full answer and defence, was given to
persons other than Klassen including at least Mr. Lucas.
There are many interests which require protection in a
criminal trial, not only the interests of the accused
person but also the privacy interests of victims, witnesses
and the need to protect the integrity of the administration
of justice. There is a need to ensure that the various
interests be balanced and accommodated.
This issue was examined at length in the Report of the
Attorney General's Advisory Committee on Charge, Screening,
Disclosure and Resolutions Discussions (The Martin
Committee Report) submitted to the Attorney General of
Ontario in 1994. The Committee examined, among other
things, the improper dissemination of disclosed
information. It recommended:
The Committee is of the opinion that it is
inappropriate for any counsel to give disclosure materials
to the public. Counsel would not be acting responsibly as
an officer of the court if he or she did so.
The Committee is of the opinion that defence counsel
should maintain custody or control over disclosure
materials, so that copies of such materials are not
improperly disseminated. Special arrangements may be made
between defence and Crown counsel, with respect to
maintaining control over disclosure materials where an
accused is in custody, and the volume of material disclosed
makes it impractical for defence counsel to be present
while the material is reviewed.
These two recommendations, as the Committee noted:
"responsibly reconcile the need to provide full disclosure
with the need to prevent misuse of disclosure material."
We agree with those recommendations and comments. The
material which is disclosed for the purpose of making full
answer and defence should not be released to third parties
either by the lawyer representing the accused or the
accused person himself.
Sentence Appeal
In our opinion the sentence imposed by the trial judge
in the circumstances of this case is, in so far as the
appellant John Lucas is concerned, excessive. We are of
the opinion a sentence of 18 months is more appropriate in
the circumstances of this case. The most important
elements of sentencing in the appellant John Lucas's case
are specific deterrence and punishment. The sentence of
two years less one day is hereby set aside and sentence of
eighteen months substituted therefore.
In our opinion the appellant Johanna Lucas was more a
follower in this matter and for that reason we are of the
opinion the sentence of twenty two months is excessive in
the circumstances of this case. We are of the opinion a
more appropriate sentence is one year and the sentence is
modified accordingly.
In the result, the appeal as to conviction is
dismissed. The sentence appeal is allowed and the
sentences modified as above indicated.
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